The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD, the Convention) is the newest treaty in the human rights framework, and was ratified by the UK in 2009. This Report examines the UK's implementation of the right to independent living for disabled people, as enshrined in Article 19 of the UNCRPD.
Independent living as a right
Despite the UK having ratified the UNCRPD, independent living does not currently exist as a freestanding, justiciable right in UK law. This Report argues that the existing matrix of human rights, equality and community care law, while instrumental in the protection and promotion of the right to independent living, is not sufficient. The right to independent living should be added as an outcome in any forthcoming Bill on adult social care in England.
We also recommend that all interested parties, governmental and non-governmental, immediately start work on assessing the need for and feasibility of free-standing legislation to give more concrete effect in UK law to the right to independent living. The Government should publish their assessment of the need for and desirability of such legislation in the light of the forthcoming first report of the UN Committee on Disabilities.
The Government have characterised the obligations assumed by under the Disabilities Convention as "soft law". This Report regards this as indicative of an approach to the treaty which regards the rights it protects as being of less normative force than those contained in other human rights instruments. The UNCRPD is hard law, not soft law, and the Government should fulfil their obligations under the Convention on that basis, and counter any public perception that it is soft law.
The impact of current reforms
While we recognise the exceptional economic circumstances facing the UK, we conclude that there is a risk of retrogression of the UK's obligations under Article 19 as a result of the cumulative impact of spending cuts and reforms. There has been particular concern about the effects of reductions in funding for local authorities, changes to Disability Living Allowance under the Welfare Reform Bill, caps on housing benefit and the closure of the Independent Living Fund, and the way in which these might interact to restrict enjoyment of the right to independent living.
Many local authorities are restricting eligibility criteria for social care support. We argue that this risks breach of Article 19. We recommend that the Government's forthcoming Disability Strategy includes measures to monitor the impact of restrictions on eligibility for adult social care on disabled people's access to independent living.
Many of our witnesses expressed concern over the proposed change from Disability Living Allowance to Personal Independence Payments (PIP). During the course of this inquiry, the Government decided that disabled people in residential settings should continue to be eligible for the DLA/PIP mobility component. We welcome this. However, we recommend that the new assessment system and eligibility criteria must not create a disincentive to using aids and adaptations, should be independently reviewed with the involvement of disabled people's organisations before being rolled out nationally, and must continue to be based on the fundamental principle that this is a benefit based on the additional costs of impairment, and not based on medical diagnosis.
We argue that the closure of the Independent Living Fund to new applicants, with no ring-fenced alternative source of funding, may severely limit the ability of disabled people to participate in society. The Government should address this issue in their consultation paper on replacement funding to be published in early 2012 and ensure that this change in policy does not result in retrogression as far as Article 19 is concerned.
The range of reforms proposed to housing benefit, Disability Living Allowance, the Independent Living Fund, and changes to eligibility criteria risk interacting in a particularly harmful way for disabled people. Some disabled people risk losing DLA and local authority support, while not getting support from the Independent Living Fund, all of which may force them to return to residential care. As a result, there seems to be a significant risk of retrogression of independent living and a breach of the UK's Article 19 obligations.
We therefore recommend that the Office for Disability Issues, the devolved administrations and local authorities, monitor the impact of reform and spending decisions on the right to independent living and report on the extent to which reforms to the ILF, DLA and housing benefit are enabling the Government and local authorities to deliver their Article 19 obligations.
Policy development and decision making
The UNCRPD imposes obligations on the Government to ensure compliance with the Convention across the whole of the UK, to develop policy by assessing the impact of decisions with the Convention in mind, and to do this with the involvement of disabled people.
The devolved administrations have taken different approaches to delivering the right to independent living. We commend the Scottish Government and the Welsh Government for their respective plans to promote independent living, but note with disappointment the lack so far of an equivalent strategy in Northern Ireland. Although the UK Government should not seek to direct the devolved authorities or local authorities in the exercise of their powers, we argue that they should acknowledge their responsibilities under the Convention to ensure its implementation across the whole of the UK.
We also received evidence that compliance with the Convention by public authorities has not been uniform, and we are unclear how the Government are meeting their obligation to ensure this compliance, especially in the light of localism and changes to public authority duties in England under the Equality Act 2010. We argue that the Government should work with the devolved administrations, the independent mechanisms, regulators and disabled people's organisations to promote awareness and understanding of the Convention among public authorities.
We are concerned that the UNCRPD does not appear to have played a central role in the development of policy and recommend that the Government make a commitment to Parliament that they will give due consideration to the articles in the Convention when making new policy and legislation.
We also received evidence that impact assessments of current reforms were not adequately carried out, and did not take into account the likely cumulative impact of reforms on disabled people. We therefore argue that the Government should publish a unified assessment of the likely cumulative impact of the proposals on independent living.
The UNCRPD specifically requires disabled people to be involved in the implementation of the Convention, and in this context we are disappointed that the English specific duties under Section 149 of the Equality Act no longer encourage the involvement of disabled people. We argue that this is a retrogressive step.
A number of other issues relevant to the enjoyment of independent living were raised during the course of our inquiry.
We welcome the Government's intention to consider introducing portable assessments for care needs. However, we are concerned that this may be insufficient to ensure the enjoyment of rights under Article 19, in particular the right to choose one's place of residence and where and with whom one lives on an equal basis with others, and urge the Government to consider whether further action is required.
Independent living also applies to people in residential settings. We therefore argue that the Government should include in their Disability Strategy a commitment to enable disabled people living in residential settings to access their full Article 19 rights. We also urge the Government to take action to enable people in residential homes to retain a greater proportion of money they earn from paid work.
We argue that the Government should monitor disabled people's access to information, advice, and advocacy services, continue to support and develop the role of Disabled People's User-Led Organisations, and implement the advocacy provisions in sections 1 and 2 of the Disabled Persons Act 1986 when reforming community care legislation.